The present bail application has been filed by the petitioner under Section 439 Cr. P.C and the same issue was held in the judgement passed by a single bench judge HON’BLE MR. JUSTICE RAJNISH BHATNAGAR, in the matter KELVIN GEORGE KATINDASA V. NARCOTICS CONTROL BUREAU dealt with an issue mentioned above.

Briefly stated, the facts of the case which was dated 10.01.2019, were firstly intercepted at IGI airport while he was travelling to Dar-Es-Sallam via Doha and during the search, 24.5kg of Pseudoephedrine was recovered. Petitioner had disclosed that he came to Delhi along with his brother Nagar and stayed at the hotel, later the suitcase was collected by the INA market, which was supposed to be handed over to Nagar in Tanzania.

Meanwhile on 18.02.2019 accused Nagar was also intercepted at Mumbai airport based on LOC, Accused Nagar also accepted his guilt and the mobile phones of accused persons were examined which proved him to be so.

Ld. counsel for the petitioner, Ld. counsel for the respondent (NCB), perused the records of this case and the Status Report filed by the respondent (NCB). He further also submitted that how the samples were drawn was not as per law as the sample was not taken from each packet and this is a violation of law in drawing the sample of drugs.

Later he submitted that a petitioner is a young person who has been falsely implicated in the present case and submitted that while issuing notice U/s 50 NDPS Act, the mandatory provisions of Section 50 NDPS Act have not been followed. He further submitted that in the instant case the embargo of Section 37 NDPS Act is not applicable.

Ld. counsel for the petitioner has relied upon the following judgments:

• Judgment dated 13.03.2020, passed by this Court in Crl. Appeal No. 1027/2015 titled Amani Fidel Chris Vs. Narcotics Control Bureau.
• Ram Narayan Vs. State 2005 [2] JCC [Narcotics] 170.
• Sujit Tiwari Vs. The state of Gujarat and another 2020 (1) Crimes 141 (SC).

Ld. counsel for the respondent that the allegations against the petitioner are grave. He further submitted that the bail of the co- BAIL APPLN. 3149/2020 Page 4 of 7 accused has been dismissed by this court vide order dated 24.11.2020. He further submitted that the petitioner is a part of a drug syndicate dealing in drug trafficking and the petitioner is a foreigner and he may abscond if released on bail.

Ld. counsel for the respondent (NCB) has relied upon the following judgments :

• State of Gujrat Vs. Salimbhai Abdulgaffar Sheikh & Ors. (2003) 8 SCC 50.
• State through Secretary, Central Narcotic Department, Lucknow Vs. Syed Amir Hussain (2002) 10 SCC 88.
• Achint Navinbhai Patel alias Mahesh Shah Vs. State of Gujarat & Anr. (2002) 10 SCC 529.

And few more facts were mentioned by the advocate.

The other contention of the counsel for the petitioner is that embargo of Section 37 of the NDPS Act is not applicable as the substance recovered is neither a narcotic drug nor a psychotropic substance. The Supreme Court also referred to the case of the Union of India Vs. Prateek Shukla, Criminal Appeal No. 284 of 2021 decided on 08.03.2021 were they had cancelled the bail of the petitioner who was found in possession of a controlled substance namely acetic anhydride.

The court perused the facts and argument’s presented, it thought that- “The instant case, looking into the allegations against the petitioner, the quantity of the substance recovered and also the fact that the petitioner is a foreigner and bail of the co-accused has been dismissed by this court vide order dated 24.11.2020, no ground for bail is made out, the bail application is, therefore, dismissed”.

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Judgment Reweied by: Mandira BS

 

A plain reading of Section 3 and Section 5 of the Act provides for the regularization of services of ad hoc or contractual employees including those appointed on consolidated pay if they have been appointed against a clear vacancy or post and have completed 7 years of service, provided further that such benefit would not be extended to part-time or seasonal employees including those who are being paid out of the local funds or the contingent grants. The aforesaid has been established by the High Court of Jammu & Kashmir and Ladakh while adjudicating the case of State of Jammu and Kashmir and others v. Abdul Majid and others [LPA No. 22 of 2019] which was decided upon by a two-judge bench comprising Hon’ble Chief Justice and Justice Mohan Lal on 17^th November 2021.

The brief facts which had led to the filing of the writ petition and consequently this appeal are that that the petitioners/respondents were appointed on temporary basis as orderlies in the Transport Department in the year 1999, some in 2002 and 2003 for a period of 89 days but were allowed to continue even thereafter with intermittent break of a day or so. After the enforcement of the above Act, as the petitioners/ respondents have completed more than seven years of continuous service and have otherwise fulfilled the essential conditions laid down for regularization therein, they claimed regularization but their claim was rejected on the ground that they were drawing salary from the contingent fund. The petitioners/respondents challenged the aforesaid rejection order and sought direction for regularization by filing SWP No. 250/2013, Abdul Majid and others v. State of J&K and others. The court allowed the aforesaid writ petition on 12.09.2014 and quashed the order refusing regularization of services of the petitioners/respondents with the direction to the official respondents to consider their cases for the purposes of regularization strictly in accordance with the aforesaid Act and that the ground that the petitioners/respondents were being paid out of the contingent fund would not be a ground for refusing regularization to them. Admittedly, the aforesaid order is final and conclusive as it was never questioned by any party in any higher forum.

The court perused the facts and arguments presented. It was of the opinion that “The recent decision of the Supreme Court in State of Jammu and Kashmir and others v. District Bar Association, Bandipora, AIR 2017 Supreme Court 11 that the scheme for regularization framed by the government must be for validating certain irregular appointments and cannot be used to validate illegal appointments and that the court cannot issue direction for regularization without considering the mandate of the Supreme Court and the prevailing rules and regulations on the subject, is of no help to the appellants in the present case inasmuch as no illegality has been pointed out at any stage in the appointment of the petitioners /respondents. They may have been irregularly appointed and it is for this reason their cases fell for consideration of regularization in accordance with the statutory provisions of the above Act. The writ court has considered their cases for regularization in the light of the provisions of the Act without impinging upon the mandate of the Apex Court. The petitioners/respondents have been found entitled for regularization of services in accordance with the prevailing rules and regulations. In view of all that has been said above, we find no illegality in the judgment and order passed by the writ court. The appeal as such is bereft of merits and is dismissed with no order as to costs.”

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Judgment reviewed by Aryan Bajaj

Vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law. The aforesaid has been established by the High Court of Jammu & Kashmir and Ladakh while adjudicating the case of Musadiq Gaffar Lone v. Union Territory Of J&K & Anr. [WP(Crl.) No.184/2020] which was decided upon by the single judge bench comprising Justice Sanjay Dhar on 16^th November 2021.

The facts of the case are as follows. Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments was on the ground that the constitutional and statutory procedural safeguards have not been complied with in the case of the petitioner, inasmuch as whole of the material forming basis of the grounds of detention has not been furnished to him. A perusal of the detention record produced by learned counsel for the respondents reveals that the material is stated to have been received by the petitioner on 11.11.2020. Report of the Executing Officer in this regard forms part of the detention record, a perusal thereof reveals that it bears the signature of petitioner and according to it, copy of detention warrant (01 leaf), grounds of detention (02 leaves), copy of dossier (Nil), other related documents (Nil), in total 04 leaves, have been supplied to him. It is clear from the execution report, which forms part of the detention record, that copies of detention order and the dossier have not at all been supplied to the detenue. contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention has not been supplied to him, appears to be well-founded.

The court perused the facts and arguments presented. It was of the opinion that “the petitioner has been hampered by non-supply of these vital documents in making a representation before the Advisory Board, as a result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law.  Viewed thus, the petition is allowed and the impugned order of detention bearing No. 37/DMP/PSA/20 dated 09.11.2020, issued by respondent No.2-District Magistrate, Pulwama, is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case. The detention record be returned to the learned counsel for the respondents.”

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Judgment reviewed by Aryan Bajaj

It is pertinent to note that an operation of this complexity, i.e., to aid an undertrial of notorious credentials escape lawful custody, has wide ramifications that may shake the confidence of the public in the police administration as well as the criminal justice system as held by the High Court of Delhi through the learned bench led by Hon’ble Mr. Justice Subramonium Prasad in the case of Bhupender Singh @ Bhuttan V. State (Nct of Delhi) (BAIL APPLN. 2991/2021).

Briefly the facts of the case are that an under-trial high risk prisoner Kuldeep @ Fajja, belonging to Gogi Gang, was taken to the OPD at GTB Hospital from Mandoli Jail. It is stated that after the check-up, Kuldeep @ Fajja was being taken back, and outside the building a group of 10-12 boys attacked the group of policemen. Two of the accused persons, who were minors, threw chilly powder in the eyes of the police. Two persons were injured badly in the cross-firing at the hospital and one of the injured passed away. The assailants succeeded in helping Kuldeep @ Fajja escape from the jail custody. The petitioner was arrested on 28.03.2021. It is stated that the role of the Petitioner in the escape of Kuldeep @ Fajja was instrumental as he took the ill-famed gangster on his scooty/bike bearing registration number DL-11-SS-5507 from Jaipur Golden Hospital towards Sector 3 Rohini. In his disclosure statement, the petitioner herein stated that he received an international call on 24.03.2021 from Kuldeep @ Fajja stating that he will escape from Police custody and he asked the petitioner to make arrangements for his stay. The statement stipulates that the plot for this escape was hatched in January/February 2021 and he was communicating the plan of executing the escape with the other co-accused through frequent WhatsApp calls. The Petitioner picked Kuldeep @ Fajja from Jaipur Golden Hospital, took him on his scooty and headed towards Village Naharpur, Sector 3 Rohini. The Petitioner’s bail application was rejected where the Ld. Sessions Court observed that in the chain of events that occurred, the petitioner played an instrumental role in the conspiracy to aid undertrial Kuldeep @ Fajja escape from lawful custody. Further, the Ld. Court noted that criminal conspiracy is a matter of inference and is to be decoded after an analysis of the sequence of events by joining the dots.

The Hon’ble Court held, “This Court needs to bear in mind that the act was meticulously planned and swiftly implemented. The conspiracy of helping Kuldeep @ Fajja escape from the lawful judicial custody is of huge magnitude which could have serious effects on public safety and graver consequences on society as a whole. To execute this conspiracy, it required skill, tact and a high level of intricate planning and plotting. Additionally, granting bail at this juncture to the accused has the potential to encourage copycat criminal behaviour. The conspiracy being so deep-rooted requires to be examined at trial and cannot be summarily adjudged upon by this Court. Further, tampering of evidence or influencing witnesses also cannot be ruled out. In light of the above, this Court is, thus, of the opinion that no case for bail is made out at this stage.”

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Judgment reviewed by Vandana Ragwani

It has been observed by the Supreme Court that paramount consideration is to be given to the wellbeing of a child whose mental psyche is vulnerable. It is well known that trauma suffered by a young girl child of 16 years of age is long lasting and it take years for a child to come out of that trauma as held by the High Court of Delhi through the learned bench led by Hon’ble Mr. Justice Subramonium Prasad in the case of Anil Kumar v. State (BAIL APPLN. 3971/2021).

The brief facts leading to the present case are that an FIR was registered on the complaint of the prosecutrix, who is 16 years of age. It is stated that the prosecutrix resides with her parents and she used to take Mathematics classes from the petitioner since 10th Standard. It is stated that on the first day of her offline class, the petitioner asked her to stay back to understand the concept taught on the previous day. He gave his notebook and went to take classes for 10th Standard. It is stated that when 10th Standard students left, the petitioner came to her to clear her doubts. He asked the prosecutrix about her 10th Standard marks and asked for a party. It is stated that when the prosecutrix packed her bag and was leaving, the petitioner stopped her and said that she was very cute and touched her cheek, closed the door and kissed her on her right cheek and then on the left. The prosecutrix was scared since she was alone, so she did not scream. She left but she was feeling extremely uncomfortable because of the manner in which the petitioner had hugged her three to four times as well as the manner in which he was talking to her. It is stated that she called her parents on her way home. Material on record reveals that after she went home, a PCR call was made and it was recorded vide DD Entry No. 49A. The Police reached the residence of the prosecutrix and met the prosecutrix along with her parents wherein her mother told the Police that the prosecutrix had been molested by the petitioner herein. It is stated that an NGO was called and the victim was counselled. Medical examination was conducted. A written complaint was handed over to the Police and the instant was registered at Police Station Prashant Vihar for offences under Section 354, 354A IPC read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was lodged. The petitioner was arrested on the same day i.e., 30.08.2021. The petitioner filed an application for grant of bail which was dismissed vide order dated 04.10.2021 passed by the learned Additional Sessions Judge stating that a reading of the facts shows that an offence under Section 10 of the POCSO Act is made out which is a more serious offence than the offence under Section 8 of the POCSO Act. The petitioner has approached this Court by filing the instant bail application.

After the perusal of the facts and arguments by the respective parties, the Hon’ble Court held, “Granting bail to the petitioner at this stage i.e., even before the charges are framed, will lead to defeating the very purpose and the object of the POCSO Act. This Court is, therefore, not inclined to grant bail to the petitioner at this stage.”

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Judgment reviewed by Vandana Ragwani